Benefits of Mediation: Confidential & Convenient

What are the benefits of mediation? Often, mediation and meditation are confused. Potential customers and eager salesmen call one kind of office looking for the other service all the time.  Internet search engines bring up the wrong results, especially if there have not been prior similar searches, or the search was voice-activated.

Mediation vs. Meditation

At first glance, there could not be more dissimilar concepts.  Meditation is usually done alone, sometimes silently, and focuses on self-improvement. Its goal is usually developing better concentration, more positive thoughts, or becoming more self-aware. Meditation is relentlessly focused on the present.

Mediation is a social and communicative alternative dispute resolution process, in which a neutral third-party mediator assists disputants in resolving a conflict between them. The parties choose both the outcome and certain process details. The mediator assists by improving communications, defusing negative emotions, and searching for shared interests.

Mediation is generally consensual but sometimes is ordered by a court. The process is future-focused. The parties are encouraged to put the past behind them and come up with a resolution all can accept.  Meditation considers only what is now, while mediation considers alternatives to the way things could be.

The mediator can make suggestions or act as a reality check on participant expectations. He or she does not make decisions for the participants. Self-determination is a major principle of mediation. Agreements reached in mediation are usually enforceable as contracts.

The five stages of mediation

There are five stages of mediation:

  • Convening — Getting agreement to mediation, coordinating schedules, preliminary identification of issues and problems.
  • Opening Statement — The mediator explains the process and sets expectations for the session.
  • Communication — Parties tell their stories. They present arguments and evidence that may be used in litigation. The point is to let all participants judge their credibility and the strength or weakness of their case.  A stronger case gives motivation to settlement.
  • Negotiation — Parties seek a mutually acceptable solution with the mediator’s help.
  • Closure — Either a settlement agreement is drawn up and signed or the mediator highlights progress made and encourages further settlement efforts.

The process must be allowed to run its course. As mediation teachers say, “You cannot shortcut the dance.”

Shared benefits of mediation and meditation

While they have obvious differences, mediation and meditation also have a surprising number of similarities.

Both are “peace processes.”

Although meditation focuses on the individual’s internal state and mediation is focused on resolving conflict, mediation and meditation both have a goal of achieving peace — one internal freedom from distractions, stress, and anxiety the other freedom from the burdens of conflict.

Mindfulness in meditation and mediation

A central concept of meditation is mindfulness or bare awareness.  This refers to the ability to become detached from our thoughts and emotions, observing and acknowledging their presence without reacting to them or judging. For example, you can know that you experience anger without immediately acting out angrily or blaming yourself for being angry.   Acknowledging an emotion is necessary to defuse it, and that a detached analytical attitude lessens strong emotions.

According to Professor Leonard Riskin, mindfulness has been a part of law school curricula since at least 1987, especially in dispute resolution courses. It has been taught at Harvard, Pepperdine’s Strauss Institute, Yale, and many other law schools. The technique helps lawyers become better listeners, negotiators, and mediators; it also promotes creativity in problem-solving.

Health benefits

Meditation is said to reduce insomnia, stress, and anxiety, improve mood, lessen hypertension, and benefit cardiovascular health. There is even inconclusive evidence suggesting that meditation can lengthen lives.

Because it eliminates often long-term interpersonal conflict, successful mediation can reduce or eliminate:

* Mental health problems, such as depression, anxiety, and personality disorders

* Cardiovascular disease, including heart disease, high blood pressure, abnormal heart rhythms, heart attacks, and stroke

* Obesity and other eating disorders

* Menstrual problems

* Sexual dysfunction

* Skin and hair problems, and permanent hair loss

* Gastrointestinal problems.

The scientific study of community-wide disasters where litigation is pervasive and long-term (such as a plane crash or toxic environmental pollution) indicates that one’s status as a litigant – not monetary damage or physical injury – was the biggest predictor of work disruption, fear, distrust, and dysfunctional stress. Like meditation, successful mediation is good for your health, because it can end inherently harmful litigation.

Cost-effectiveness

Because meditation is something you do for yourself, it is free (unless you use a teacher or book to help you). Mediation may also be free if done through a court or a neighborhood justice center.

Even if disputants choose an expert and highly compensated mediator, the cost will not be more than a few thousand dollars. Even a multiparty construction mediation will certainly cost less than litigation given that the neutral’s fees are almost always divided among the participants and the process is a rapid one.

Of course, expert fees can increase costs substantially, as can the presence of numerous issues. But expert fees would also be required at trial, and complexity increases cost no matter how a case is resolved. Compared to the tens of thousands, hundreds of thousands or even millions that complex litigation can cost, mediation is a bargain.  Surveys show that on average, meditation saves a party between $15,000 and $20,000 per case. Since the surveys are a few years old, the savings is probably higher, given that the price of legal services historically has climbed 3% to 4% per year.

Time effectiveness

Meditation teachers recommend that beginners start with as little as two minutes a day and work up to twenty or thirty minutes twice a day. Even if meditation is only half as effective as people say, you can afford the small investment of time required to reap the benefits.

Mediation is also speedy. Most mediations are resolved within a day or two.  As long as the proper preparation has been done, even the most tangled and contentious multi-party mediation won’t take more than a week or so, though each of the five stages will be more difficult and take longer with a greater number of participants.   In contrast, litigation is time-consuming. From start to finish it can take two to three years or longer, even without an appeal.

Arbitration is less time-consuming than litigation, saving an average of four hundred days compared to a full-blown trial. But like litigation, it is adversarial, turns the parties’ fate over to a third-party decision-maker, and is focused on past wrongs and present legalities rather than future productivity. And since it still may last a year or more, a mediated resolution is a quicker way of ending the conflict.

Confidentiality

What thoughts drift through your mind during mediation will remain known only to you unless you share them.  The same thing cannot be said about a multi-party communication process like mediation. But California’s legislature believes that mediation will not work without confidentiality. So California Evidence Code section 1119 contains an array of protections for mediation communications:

“(a) No evidence of anything said…for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any …noncriminal proceeding …

(b) No writing…. prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any … noncriminal proceeding…

(c) All communications, negotiations, or settlement discussions… between participants in the course of a mediation or …mediation consultation shall remain confidential.”

The California Supreme Court applies the mediation statute very strictly.  There are no judicial exceptions unless the statute conflicts with a Constitutional right.  Mediation communications between parties and their attorneys cannot even be used to show that attorney’s malpractice.   

Acceptance

Meditation teachers speak of mindfulness meditation as increasing acceptance. It is not clear what they mean here. They might mean greater acceptance of one’s own flaws, foibles, and failures. They might mean greater acceptance of these imperfections in other people. “Acceptance” might mean acceptance by others. Or it might mean acceptance of circumstances that are less than ideal without complaining.  This author believes that it means all of the above.   

If one develops a nonjudgmental, observational attitude firmly rooted in experiencing the present fully, he or she is less likely to be disappointed by minor imperfections and bad habits in themselves and other people, and less likely to find fault with present circumstances. In turn, this more positive version of yourself is likely to be more readily accepted by others.

In the mediation context, acceptance can mean reconciliation with one’s opponents, compliance with the agreement reached in the mediation session, or satisfaction with the mediation process. Once again all three are usually true. As the most collaborative, least adversarial ADR process, mediation famously preserved and restores relationships between disputants. The negative emotions that underlie conflict have been acknowledged as valid and both parties have been heard. There is no reason for continuing animosity, particularly if a creative win-win solution has been crafted. Litigants who reached a mediated agreement were twice as likely to comply as those who had judgments entered against them. Further, the vast majority of survey respondents view mediation as “very fair.” This increases the likelihood of compliance.

Conclusion

Mediation has many benefits. It is fast, inexpensive, confidential, reduces conflict, increases satisfaction, maintains and restores relationships, and is healthy for you.  Mindfulness meditation shares these traits. Give both a try!

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